Trial Preservation Depositions: Round 2!

A prior post discussed the split authority as to whether “trial preservation” depositions must be taken during the discovery period, or may be taken outside of discovery.[1]  On which side of the fence do the local courts land?

The plaintiff in Wierzbowski v. Dec sought leave to take five such depositions.[2]  The witnesses had been disclosed long ago, during the discovery period that had now closed.  The court decided “trial depositions needed to preserve testimony are generally treated as distinct from discovery depositions. Hence, the passage of the discovery cutoff does not necessarily preclude a party from obtaining trial depositions for witnesses who are outside the subpoena power of the Court.”

Applied here, the witnesses were beyond the court’s subpoena power.  The court found “no bad faith or tactical reason behind Plaintiff’s request to take the trial depositions at this time.”  However, this may factor may have been impacted by the fact that it appears the plaintiff had been without counsel for a period of time.  The prejudice to the defendant was minimal because he could still participate in the deposition.  There was also no surprise these disclosed witnesses would offer testimony.

I tend to believe this particular ruling was partially a result of fact that the plaintiff had been pro se for a relevant period of time and was represented by a pro bono attorney when the request was made.  Further, there is an important limitation to the ruling in that the witnesses were beyond the court’s subpoena power.  The risk that a witness may not comply with a valid subpoena is not sufficient under this holding to obtain a trial preservation deposition after discovery closed.

[1] November 12, 2015
[2] No. 2:13-cv-0076, 2017 U.S. Dist. LEXIS 89649 (D. Nev. June 12, 2017).